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Why you should always encrypt your smartphone

A California court has ruled that the police have the right to search your …

Last week, California's Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals' persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

California's opinion in Diaz is the latest of several recent court rulings upholding warrantless searches of mobile phones incident to arrest. While this precedent is troubling for civil liberties, it's not a death knell for mobile phone privacy. If you follow a few basic guidelines, you can protect your mobile device from unreasonable search and seizure, even in the event of arrest. In this article, we will discuss the rationale for allowing police to conduct warrantless searches of arrestees, your right to remain silent during police interrogation, and the state of mobile phone security.

The Fourth Amendment's search incident to arrest exception

It has long been established under common law that law enforcement officers may conduct warrantless searches of criminal suspects upon arresting them. Courts have identified two exigencies that justify warrantless searches of suspects incident to arrest.

First, the government has a compelling interest in ensuring that detained suspects are not in possession of weapons or other dangerous items. Requiring that police obtain a warrant before determining whether an arrested individual is armed would subject officers to potentially life-threatening risks.

Second, the government has a compelling interest in preventing arrestees from destroying or tampering with evidence of criminal activity in their immediate possession at the time of arrest. Imposing a warrant requirement on police searches of arrestees would afford suspects an opportunity to destroy any incriminating evidence on their persons.

Unfortunately, courts have expanded the scope of this once-narrow exception to create a gaping hole in the Fourth Amendment. In 1973, the United States Supreme Court held in US v. Robinsonthat warrantless searches of arrestees’ persons are presumptively reasonable and require "no additional justification" to be lawful. In 1974, the Court further held in US v. Edwards that objects found in an arrestee's "immediate possession" may be subject to delayed warrantless search at any time proximate to the arrest—even absent exigent circumstances.

In 1977, the Supreme Court clarified the search incident to arrest exception in US v. Chadwick, holding that the warrantless search of a footlocker found in the possession of criminal suspects violated the Fourth Amendment because the search took place after the suspects had been put into custody and the footlocker had been secured by police. In Chadwick, the Court held that while warrantless searches of objects found on arrestees' persons are presumptively lawful due to the "reduced expectations of privacy caused by the arrest," closed containers that are not "immediately associated with" arrestees' persons are not subject to a delayed warrantless search, barring exigent circumstances.

Based on these precedents, California's Supreme Court held in Diaz that mobile phones found on arrestees' persons may be searched without a warrant, even where there is no risk of the suspect destroying evidence. Therefore, under Diaz, if you're arrested while carrying a mobile phone on your person, police are free to rifle through your text messages, images, and any other files stored locally on your phone. Any incriminating evidence found on your phone can be used against you in court.

On the other hand, if you are arrested with a mobile phone in your possession but not immediately associated with your person, police may not search your phone without a warrant once you’ve been taken into custody and your phone is under police control.

The takeaway from Diaz, therefore, is that you should store your mobile phone in your luggage, footlocker, or in some other closed container that's not on your person, particularly when driving an automobile. (For more on this subject, see our 2008 article summarizing the search incident to arrest exception in the context of mobile phones. Also see The iPhone Meets the Fourth Amendment, a 2008 UCLA Law Review article by law professor Adam Gershowitz.)

What about password-protected mobile phones?

While the search incident to arrest exception gives police free rein to search and seize mobile phones found on arrestees’ persons, police generally cannot lawfully compel suspects to disclose or enter their mobile phone passwords. That's because the Fifth Amendment's protection against self-incrimination bars the government from compelling an individual to divulge any information or engage in any action considered to be "testimonial"—that is, predicated on potentially incriminating knowledge contained solely within the suspect's mind.

Individuals can be forced to make an incriminating testimonial communication only when there is no possibility that it will be used against them (such as when prosecutors have granted them immunity) or when the incriminating nature of the information sought is a foregone conclusion. (For more on this subject, see this informative article forthcoming in the Iowa Law Review, also by Professor Gershowitz, which explores in great depth the uncharted legal territory surrounding password-protected mobile phones seized incident to arrest.)

As such, if you are arrested or detained by a law enforcement officer, you cannot lawfully be compelled to tell the officer anything other than your basic identifying information—even if the officer has not read you the Miranda warning. Exercising your right to remain silent cannot be held against you in a court of law, nor can it be used to establish probable cause for a search warrant.

What if you're not a criminal and think you have nothing to hide? Why not simply cooperate with the police and hand over your password so that you can get on with your life?

For one thing, many Americans are criminals and they don't even know it. Due to the disturbing phenomenon known as "overcriminalization," it's very easy to break the law nowadays without realizing it. A May 2010 study from the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers found that three out of every five new nonviolent criminal offenses don't require criminal intent. The Congressional Research Service can't even count the number of criminal offenses currently on the books in the United States, estimating the number to be in the "tens of thousands."

What's more, the US Supreme Court has held that police may arrest you for simple misdemeanors, such as driving without a seatbelt or having unpaid parking tickets. While police don't typically arrest individuals for such trivial infractions, all it takes is one unlucky police encounter and you could end up behind bars. If that happens, and your mobile phone is on your person, it may be subject to a warrantless search. If police dig up an incriminating text message, e-mail, or errant image file on your mobile device, it might be enough to convince a judge to issue a search warrant of your property—or, worse, lead to criminal charges being filed against you.

138 Reader Comments

That's because the Fifth Amendment's protection against self-incrimination bars the government from compelling an individual to divulge any information or engage in any action considered to be "testimonial"—that is, predicated on potentially incriminating knowledge contained solely within the suspect's mind.

If this is truly the case, then law enforcement should not have the ability to search the phone without my consent in the first place...which is how it should be.

Encrypting the phone should be unnecessary, if they cannot compel me to provide the password, they cannot compel me to turn it over as evidence either....I should be able to plead the fifth in either regard.

Simply stated, even if you are innocent, you never gain anything from talking to the police because it can easily become you vs. police, and if they find a "witness" backing up their claim, it gets harder to disprove their claim. Just remember, not talking does NOT make you guilty.

Well, the government stance isn't a hard one to take concerning searching, as the previous ars thread on this subject has demonstrated, people want to tamper with evidence if it could expunge or mitigate their guilt.

I suggest this to everyone: encrypt your entire hard drive(s) as well. Not because you're trying to hide things from the government but to protect yourself from thieves. This is especially important if you have a mobile phone or a laptop! If a thief takes your computer, and you have stored passwords, that thief now has access to all of your online accounts! Stay safe: encrypt your data.

Anyway, here's my opinion - 'immediately' available data is almost always the equivalent of a plain view discovery. Phone gets a SMS during your arrest, it's fair game. In conjunction, immediately available data should be considered fair game as well. Say, your SMSes or immediately available emails. In such cases, however, procedures should be developed and mandated that the officer does not go beyond boundaries established by reasonable suspicion. So a quick, video-evidence backed glance at your past messages/inbox, if available and justified by the action you have been detained for. However, care should also be taken to secure the evidence and to prevent any tampering of the evidence. This means timelines, documenting actions, and the like, along with a way of ensuring that the devices aren't tampered with by outside influences.

The protection is against 'unreasonable' searches. IF there is reason for the detention and subsequent search, that protection is abrogated. So this means that guidelines need to be developed, publicly scrutinized, and otherwise subject to due process, and not that we should all bury our heads in the sands and cry foul.

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All that said, encrypt your data and protect it in some manner. It's not prima facie evidence that you have something to hide, and it prevents a lot of unnecessary unpleasantries with theft OR a search. I'll agree there.

strong password and full device enctryption. Not guilty of anything and definately not wanting to share my personal information with any government entity unles they have obtained the proper legal means to do so.

In such cases, however, procedures should be developed and mandated that the officer does not go beyond boundaries established by reasonable suspicion.

There are already mandates for what an officer can and cannot do, and as has been shown in the media time and time again, that no matter what law/rule (mostly) an officer breaks they just receive a slap on the wrist (if that).

My city, Indianapolis, has had riots started by the police and those responsible were shuffled to other positions. Anyone else would have been arrested for starting this.

We now have an officer that was driving his cruiser at high speeds while drunk and killed someone. He's not gotten very much out of that and will probably not get much else. Of course most things that could have been used to crucify his ass was thrown out because the investigating officers didn't follow the proper procedures with him that they would have with you or I. Anyone else would have already been wearing those orange jump suits for the next 5 to 15 years.

Another one was driving recklessly while high on pills and not much of anything is coming from that either.

Cops already go way beyond the established boundaries. Do you honestly think one more is going to make a difference?

My personal view is that if they want to search the phone they should either have to get a warrant, or have cause to search normally (e.g. visible drugs, matching an outstanding description, etc).

Quite aside from personal privacy issues, with many phones there's an issue of proprietary corporate information.

Also, there's a problem of extension; if they can search a smartphone, which is a small, portable wirelessly-networked computer, why can't they search larger, portable wirelessly-networked computers? What about slates? Android slates and iPads are (almost literally) just larger versions of phones; why could you search an iPhone, but not an iPad?

To nip the whole thing in the bud, a warrant should be required. If necessary, the officer can separate the suspect pending proper paperwork; that also puts the officer on the hook for arresting someone without proper cause.

My personal view is that if they want to search the phone they should either have to get a warrant, or have cause to search normally (e.g. visible drugs, matching an outstanding description, etc).

Quite aside from personal privacy issues, with many phones there's an issue of proprietary corporate information.

Also, there's a problem of extension; if they can search a smartphone, which is a small, portable wirelessly-networked computer, why can't they search larger, portable wirelessly-networked computers? What about slates? Android slates and iPads are (almost literally) just larger versions of phones; why could you search an iPhone, but not an iPad?

To nip the whole thing in the bud, a warrant should be required. If necessary, the officer can separate the suspect pending proper paperwork; that also puts the officer on the hook for arresting someone without proper cause.

Then how do you prevent tampering? Confiscate the phone until a warrant is denied or granted? Or expecting the person who knows whether or not they did something wrong to be stupid enough to leave evidence on the device?

Pretty much. More needs to be done to bring over-criminalization to light. New criminal offenses are created by the hundreds, if not thousands, each year and we constantly justify it as for our own good. At some point we need to realize that crime should not be an industry and really look into what we've done to ourselves. The fact that we not only consider but actively allow privately-owned prisons contracted to provide service to the state because of how easy it is to break the law is ridiculous. No element of the criminal justice system should be for-profit.

My personal view is that if they want to search the phone they should either have to get a warrant, or have cause to search normally (e.g. visible drugs, matching an outstanding description, etc).

Quite aside from personal privacy issues, with many phones there's an issue of proprietary corporate information.

Also, there's a problem of extension; if they can search a smartphone, which is a small, portable wirelessly-networked computer, why can't they search larger, portable wirelessly-networked computers? What about slates? Android slates and iPads are (almost literally) just larger versions of phones; why could you search an iPhone, but not an iPad?

To nip the whole thing in the bud, a warrant should be required. If necessary, the officer can separate the suspect pending proper paperwork; that also puts the officer on the hook for arresting someone without proper cause.

Then how do you prevent tampering? Confiscate the phone until a warrant is denied or granted? Or expecting the person who knows whether or not they did something wrong to be stupid enough to leave evidence on the device?

They can hold it as evidence until they get the warrant and then they can try to crack it (not sure how successfull they will be with Windows Mobile 6.5 with full device encryption though unless they have a back door) Also unless you are near your wifi that should be left off at all times when not in use and BT should be set to not visitble

I definitely agree that any searches of mobile devices of any sort should require proper cause and a warrant. If arrested, confiscate the phone as evidence pending a warrant ONLY if there is sufficient evidence to believe the device is somehow connected to the crime. I carry a phone in a holster on my belt....is that not a closed container? I carry two laptops in a bag, so that is a closed container!

If, at the time a crime is committed, the mobile device was in use, then I can see where suspicion is warranted. Otherwise, it is the same as searching the home or other personal areas. A lot of people have ditched land lines in favor of mobile phones, so the phone is their primary communication device...i.e. the same as a home or office phone. In order to search those, it requires a warrant to view the records. The same guidelines should apply to mobile devices!

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

if you have a Galaxy S or US equiv then it might be worth asking the guys at xda-dev, they've added every other FS you can think of to the custom builds

sdx-dev, you mean? They're the Samsung specialists. I went to xda-dev for help with a Samsung (Acclaim, not Galaxy S, though) and they sent me to sdx-dev. Good people at both sites AFAICT.

Good housekeeping should keep any illegal or unethical content off your phone in the first place. Downloads should be backed up to the PC. I suppose if I were involved in any shady business (which I am not), I would delete any related call logs and SMS relating to the business when it was concluded. Though it seems to me an app like CCleaner or Clean After Me would be of great use (especially if it ran at a set time, in the background, every day at a certain time).

Of course, the best practice is to keep your nose out of trouble, but technology opens a lot of doors, both above and below ground. The Napster of 10-11 years ago is a great example of that.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

See... If, after you were unjustifiably maced and arrested, one of those 99% of the police you've encountered who are supposedly "great people" had turned around and put the cuffs on the one who did that to you, and seen to it that he went to prison for assault and kidnapping; then you would have a point.

But I'd bet good money that did not happen. In fact, I'd bet that nothing at all happened to that 1%-er. And therein lies the problem. The police do not police themselves. The supposedly "good" cops ignore the abuses of the others in the best case, and lie and cover for them in most.

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

How do you know for sure that you’re a law-abiding citizen? Do you know every one of the “tens of thousands” of criminal offenses on the books in the U.S.? Do you realize that a growing number of criminal offenses don’t even require mens rea (a guilty mind)?

There’s a reason the United States has the highest incarceration rate in the world and accounts for 1 in 4 of the world’s prisoners – and it’s not because Americans are unusually inclined toward violence or property crimes. It’s because our massively screwed up legal system puts way too many people behind bars for way too long, in many cases for no good reason.

Former U.S. Attorney General Edwin Meese, a law-and-order conservative who served under Ronald Reagan, recently wrote about a few particularly egregious examples of overcriminalization:

• A 12-year old girl arrested and handcuffed for eating one French fry on the Washington subway system.

• A cancer-ridden grandmother arrested and criminally charged for refusing to trim her hedges the way officials in Palo Alto, Calif., were trying to force her to.

• A former high-school science whiz kid sent to prison after initially being arrested by FBI agents clad in SWAT gear for failing to affix a federally mandated sticker to his otherwise legal UPS package.

• A 67-year-old grandfather imprisoned because some of the paperwork for his home-based orchid business did not satisfy an international treaty.

Then there are child pornography laws, which don’t even require criminal intent. Accidentally having a sexually explicit image of a teenager one day shy of 18 on your computer technically means you’ve committed a federal felony. In fact, federal prosecutors have tried to convict innocent Americans of child pornography possession for videos depicting adults. In 2008, a New Yorker was nearly convicted for an allegedly illegal video that featured an actress who was actually 19 at the time of filming. The charges against him were dismissed only after the actress in question flew to the United States to testify in the man’s trial.

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

uhm, might want to do some more reading about our government then. Obama care has provision for lojacking every single person in the US with a biomedical device to record all important medical data.....as always in the past, government NEVER stops there.....

Sec. 2521, P. 1000 – The govt. will establish a National Medical Device Registry. H.R. 3200 [Healthcare Bill], pages 1001-1008:(g)(1) The Secretary shall establish a national medical device registry (in this subsection referred to as the ‘registry’) to facilitate analysis of postmarket safety and outcomes data on each device that— ‘‘(A) is or has been used in or on a patient; ‘‘(B) and is— ‘‘(I) a class III device; or ‘‘(ii) a class II device that is implantable, life-supporting, or life-sustaining.”Page 104 defines data in paragraph 1Section B National Medical Device Registry from H.R. 3200 [Healthcare Bill], pages 1001-1008:http://www.fda.gov/MedicalDevices/Devic ... Guidance...Approved by the FDA, a class II implantable device is an “implantable radio frequency transponder system for patient identification and health information.” The purpose of a class II device is to collect data in medical patients such as “claims data, patient survey data, standardized analytic files that allow for the pooling and analysis of data from disparate data environments, electronic health records, and any other data deemed appropriate by the Secretary.”Any other data deemed appropriate by the secretary, so is the sky is the limit? Pages 1001-1008 “National Medical Device Registry” section.Page 1006 “to be enacted within 36 months upon passage”http://www.fda.gov/downloads/MedicalDev ... ulationa...http://waysandmeans.house.gov/media/pdf ... 001xml.pdf

I have a concern about the "do not cooperate with the police" part. I don't know how are policemen in the USA, but in France they have ways to make believe you'd better cooperate, especially when you are not a martial art specialist.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

See... If, after you were unjustifiably maced and arrested, one of those 99% of the police you've encountered who are supposedly "great people" had turned around and put the cuffs on the one who did that to you, and seen to it that he went to prison for assault and kidnapping; then you would have a point.

But I'd bet good money that did not happen. In fact, I'd bet that nothing at all happened to that 1%-er. And therein lies the problem. The police do not police themselves. The supposedly "good" cops ignore the abuses of the others in the best case, and lie and cover for them in most.

Sure. In an ideal world that is exactly how things would have happened. But no. I spent the night in detox and took the train home in the morning wearing a hospital smock.

Is that right? of course not. An idiot would tell you that. But that doesn't have a damn thing to do with my cell phone. The cops had me completely in their control without any need for a search warrant on my phone. In fact I didn't even have a cell phone at the time.

So, what is your point: that cops have too much power or that cell phone should be encrypted? This piece of crap article claims that we should all encrypt our phones. Why? I don't see a good reason and nobody here has suggested one.

I'm not a fan of the government but I'm much less inclined to knee jerk reactions to yellow journalism.

That's because the Fifth Amendment's protection against self-incrimination bars the government from compelling an individual to divulge any information or engage in any action considered to be "testimonial"—that is, predicated on potentially incriminating knowledge contained solely within the suspect's mind.

If this is truly the case, then law enforcement should not have the ability to search the phone without my consent in the first place...which is how it should be.

Encrypting the phone should be unnecessary, if they cannot compel me to provide the password, they cannot compel me to turn it over as evidence either....I should be able to plead the fifth in either regard.

The Court of California was wrong in this decision, and it will be overturned once the Supreme Court gets ahold of this.It's akin to the police/feds coming into your home and seeing something that appears to have a lock on it which is NOT covered by the warrant they have. They have to get ANOTHER warrant.Not to mention that the searches the Court referred to were STRICTLY LIMITED BY THE SUPREME COURT to only cases and things where a reasonable justification of threat to the life of an officer could be reasoned.This falls flat on that issue.

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

I'm not. That's the easiest question anyone has asked in the last 20 years.

But that has nothing to do with my cell phone. I speed. Don't you? I don't know a single American that hasn't. we're all dirty bastards; breaking the law.

So I don't get your point. None of your points has anything to do with cell phones.

Can police power be abused? Of course. Any power can. But how does encrypting my phone prevent that? How can I help fight against the injustice of the world? What does encrypting my phone (which has no porn or pictures of people smoking weed) have to do with anything you talked about?

Please. Explain to me. Why should I encrypt my phone? That's what this article is about. Try to stay on topic.

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

uhm, might want to do some more reading about our government then. Obama care has provision for lojacking every single person in the US with a biomedical device to record all important medical data.....as always in the past, government NEVER stops there.....

Sec. 2521, P. 1000 – The govt. will establish a National Medical Device Registry. H.R. 3200 [Healthcare Bill], pages 1001-1008:(g)(1) The Secretary shall establish a national medical device registry (in this subsection referred to as the ‘registry’) to facilitate analysis of postmarket safety and outcomes data on each device that— ‘‘(A) is or has been used in or on a patient; ‘‘(B) and is— ‘‘(I) a class III device; or ‘‘(ii) a class II device that is implantable, life-supporting, or life-sustaining.”Page 104 defines data in paragraph 1Section B National Medical Device Registry from H.R. 3200 [Healthcare Bill], pages 1001-1008:http://www.fda.gov/MedicalDevices/Devic ... Guidance...Approved by the FDA, a class II implantable device is an “implantable radio frequency transponder system for patient identification and health information.” The purpose of a class II device is to collect data in medical patients such as “claims data, patient survey data, standardized analytic files that allow for the pooling and analysis of data from disparate data environments, electronic health records, and any other data deemed appropriate by the Secretary.”Any other data deemed appropriate by the secretary, so is the sky is the limit? Pages 1001-1008 “National Medical Device Registry” section.Page 1006 “to be enacted within 36 months upon passage”http://www.fda.gov/downloads/MedicalDev ... ulationa...http://waysandmeans.house.gov/media/pdf ... 001xml.pdf

Is this "chip" suppose to be implanted in the forehead, or the hand?

Now how many phones actually have encryption, or is that the exclusive domain of the smart-phone?

How do you know for sure that you’re a law-abiding citizen? Do you know every one of the “tens of thousands” of criminal offenses on the books in the U.S.? Do you realize that a growing number of criminal offenses don’t even require mens rea (a guilty mind)?

There’s a reason the United States has the highest incarceration rate in the world and accounts for 1 in 4 of the world’s prisoners – and it’s not because Americans are unusually inclined toward violence or property crimes. It’s because our massively screwed up legal system puts way too many people behind bars for way too long, in many cases for no good reason.

Former U.S. Attorney General Edwin Meese, a law-and-order conservative who served under Ronald Reagan, recently wrote about a few particularly egregious examples of overcriminalization:

• A 12-year old girl arrested and handcuffed for eating one French fry on the Washington subway system.

• A cancer-ridden grandmother arrested and criminally charged for refusing to trim her hedges the way officials in Palo Alto, Calif., were trying to force her to.

• A former high-school science whiz kid sent to prison after initially being arrested by FBI agents clad in SWAT gear for failing to affix a federally mandated sticker to his otherwise legal UPS package.

• A 67-year-old grandfather imprisoned because some of the paperwork for his home-based orchid business did not satisfy an international treaty.

Then there are child pornography laws, which don’t even require criminal intent. Accidentally having a sexually explicit image of a teenager one day shy of 18 on your computer technically means you’ve committed a federal felony. In fact, federal prosecutors have tried to convict innocent Americans of child pornography possession for videos depicting adults. In 2008, a New Yorker was nearly convicted for an allegedly illegal video that featured an actress who was actually 19 at the time of filming. The charges against him were dismissed only after the actress in question flew to the United States to testify in the man’s trial.

You espoused why for a lot of these laws, we need to get rid of them or make them SOLELY civil actions, with no criminal penalty. There is no reason why someone should be put into prison for not putting a sticker on a package. There is no reason why someone should be put into prison for not having the 'right paperwork' for a business, unless you are talking about an attempt at tax evasion.

The government needs to stick to laws that ONLY encompass the 4 true morals:1. Do not kill someone unless they are trying to kill you or someone else and it is your last choice to stop that killing.2. Do not physically attack someone else unless they are trying to attack you or someone else and it is your last choice to stop that attack OR you are both in a arena/other place where you both know that you are going to be attacked.3. Do not steal from someone unless it is your last choice between you and starving/freezing/etc. to death.4. Do not force someone to do or not do something that they do not or do wish to do (regardless of age or lack of, or if it involves sex), unless they are breaking one of the first 3 rules and/or damaging property not their own.

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

uhm, might want to do some more reading about our government then. Obama care has provision for lojacking every single person in the US with a biomedical device to record all important medical data.....as always in the past, government NEVER stops there.....

You didn't give a single reason why I, as a law-abiding citizen, should give a crap about this. You mention some bullshit statistic about how we're all really breaking the law, but you don't mention what laws. I'd much rather know that than worry about my phone. Much better to not be arrested in the first place.

99% of the police I've encountered have been great people. I've also been (unjustly) maced and thrown in the drunk tank. Still, I'm not worried about encrypting my phone. What the hell do you have on yours that you're worried about???

Sure, there's always the government turns evil argument, but I haven't seen any evidence of secret police rounding up dissents in my neighborhood. Please let me know if you have.

I'm not. That's the easiest question anyone has asked in the last 20 years.

But that has nothing to do with my cell phone. I speed. Don't you? I don't know a single American that hasn't. we're all dirty bastards; breaking the law.

So I don't get your point. None of your points has anything to do with cell phones.

Can police power be abused? Of course. Any power can. But how does encrypting my phone prevent that? How can I help fight against the injustice of the world? What does encrypting my phone (which has no porn or pictures of people smoking weed) have to do with anything you talked about?

Please. Explain to me. Why should I encrypt my phone? That's what this article is about. Try to stay on topic.

Cheers!

The issue really is one of temptation. Encrypting doesn't make the other person a better being, but for those already bad it removes a tool, and for those honest it removes the temptation to take that one small step (of many) towards ending up bad. There's also the issue of simply securing your belongings against criminal minds, and government just happens to be a side-effect.

Seriously folks. Click on this 'Ryan's name at the top. He hasn't written a real article for Ars in the last 2 years. I've never heard of him and I've been reading Ars for over 5 years. This is bullshit.

Yes there are real privacy issues. yes there are plenty off instances of police abusing their power.

But this? Really? You expect me to get bent about encrypting my cell phone? There are bigger fights to fight. Ones that might actually change the world. Me encrypting my phone is bullshit. Pandering.

Again: ars is done. Bought out and posting crap. hannibal should be ashamed. I used to come here to read about cpu architecture and now I get bullshit. FUCK YOU.

The issue really is one of temptation. Encrypting doesn't make the other person a better being, but for those already bad it removes a tool, and for those honest it removes the temptation to take that one small step (of many) towards ending up bad. There's also the issue of simply securing your belongings against criminal minds, and government just happens to be a side-effect.

Sorry? I'm not sure what you're saying.

Encryption is only about hidding. It doesn't make anyone better and I would argue that hiding makes people worse. Even having the option to hide things allows people to behave poorly.

Yes, hiding your info from bad people is a good idea. So if you're the type to lose your phone you should certainly encrypt what you put on there. Or better yet; recognize that you can't keep track of your belongings and don't put any sensitive information on your phone.

As for the government: no. I don't trust them either. But really they have bigger fish to fry and I don't think the average geek on Ars has to worry about the Man coming after them.

Seriously folks. Click on this 'Ryan's name at the top. He hasn't written a real article for Ars in the last 2 years. I've never heard of him and I've been reading Ars for over 5 years. This is bullshit.

Yes there are real privacy issues. yes there are plenty off instances of police abusing their power.

But this? Really? You expect me to get bent about encrypting my cell phone? There are bigger fights to fight. Ones that might actually change the world. Me encrypting my phone is bullshit. Pandering.

Again: ars is done. Bought out and posting crap. hannibal should be ashamed. I used to come here to read about cpu architecture and now I get bullshit. FUCK YOU.

Nobody ever said that encrypting your phone should be your top priority in life, or that it's the most embattled front in the war on the Constitution. Rather, encrypting your smartphone is just one of many, many steps you can take if you care about your civil liberties and your right to be free from unreasonable governmental intrusion into your private life. This article contains lots of useful information for people who have smartphones that contain private data and want to keep it that way.

Even if there's nothing incriminating on your phone, wouldn't you rather that police didn't have free reign to look through all of your emails and text messages? Because if you don't encrypt your phone, depending on where you live, being arrested for "reckless driving" might result in your private correspondence being read by government officials.